Tom Ginsburg Advocates for Constitutional Courts in African Nations

The “imperial presidency.” It’s the name given by many constitutional scholars and opposition politicians to unchecked powers that some say practically make the executive into a monarchy.

Strong presidents are part of a long tradition in Africa, from powerful colonial governors to leaders linked to one-party rule. Scholars say nearly everyone is complicit: they note many founding fathers believed that only powerful leaders could foster national unity and development. Their authority was not to be questioned by public debate or by other branches of government.

Professor of law Kwasi Prempeh, who teaches at Seton Hall Law School in Newark, New Jersey, said many African constitutions were amended in the 1990s to reflect multi-party democracy. But he said they left the issue of presidential power unanswered.

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Tom Ginsburg is professor of international law at the University of Chicago Law School and professor of political science. He and Professor Prempeh support the introduction of constitutional courts, like the one in South Africa. It can review government policy and mandate changes if the court finds violations of the constitution.

The French connection

Ginsburg said that in francophone Africa, there are constitutional courts that can hear cases – and suggest amendments -- brought to them by the president, deputies and other political groups. Most of those cases judge the legality of laws passed by parliament, but only before they’ve been signed.

He said the courts are based on an idea introduced by a well-known French leader from the 1960s who stood for a strong executive power over the legislature.

"It’s really a mechanism for the political system to work out problems within legislation before it becomes law," said Ginsburg. "It was originally designed by former president Charles De Gaulle to check the French parliament and has fit well in political culture of francophone West Africa, in which strong men can use the constitutional court to prevent parliament from becoming too independent."

"France amended its constitutional court in 2008 to provide for individual complaints against laws after they have been promulgated, and that was a radical change in France. But most of the former French colonies have not followed that. They have retained the old model. Maybe in coming decades they’ll change their system and that would allow further development of constitutional courts, which would be an independent check on government."